Death of Labour Law?: Comparative Perspectives

280 Pages·2009·4.075 MB·English

by  Martin Vranken

Death of Labour Law?
Comparative Perspectives
Martin Vranken
MELBOURNE UNIVERSITY PRESS
An imprint of Melbourne University Publishing Limited
187 Grattan Street, Carlton, Victoria 3053, Australia
[email protected]
www.mup.com.au
First published 2009
Text © Martin Vranken, 2009
Design and typography © Melbourne University Publishing Limited, 2009
This book is copyright. Apart from any use permitted under the Copyright
Act 1968 and subsequent amendments, no part may be reproduced, stored
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without the prior written permission of the publishers.
Every attempt has been made to locate the copyright holders for material
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Text design by Phil Campbell
Cover design by Phil Campbell
Typeset by J & M Typesetting
Printed by Griffin Press, SA
National Library of Australia Cataloguing-in-Publication entry:
Death of labour law?: comparative perspectives / Martin Vranken
9780522856293 (pdf)
9780522856309 (pbk.)
Includes index.
Bibliography.
Labour laws and legislation—Western countries.
Labour laws and legislation—Developed countries.
344.172201
In memory of Dr Szakats (1915–2001)

Contents
Abbreviations vi
Preface ix
1. Comparative Study of Labour Law:
The Proverbial Apples and Oranges? 1
2. Labour Law: Subject or Method? 14
3. Employee Status 44
4. Employee Representation 75
5. Labour Courts 107
6. The International Dimension of Labour Law 142
7. From Collectivism to Individualism (and Back?) 173
8. Labour Law and Flexicurity 204
Epilogue 235
Appendix 1: Community Charter on Fundamental
Social Rights of Workers (1989) 237
Appendix 2: Charter of Fundamental Rights of the
European Union (2000) 244
Appendix 3: Common Principles on Flexicurity (2007) 256
Bibliography 258
Index 268
Abbreviations
AC Appeal Cases
ACJ Arbitration Court Judgments
ACTU Australian Council of Trade Unions
AFL American Federation of Labor
AILR Australian Industrial Law Reports
ALR Australian Law Reports
APEC Asia-Pacific Economic Cooperation
ATR Australian Taxation Reports
AWA Australian Workplace Agreement
Benelux Belgium, the Netherlands, Luxembourg
BGB Bürgerliches Gesetzbuch
C Case
CA Court of Appeal
CAR Commonwealth Arbitration Reports
CIO Congress of Industrial Organizations
CLR Commonwealth Law Reports
CMLR Common Market Law Reports
Cth Commonwealth
EC European Community
ECR European Court Reports
ECSC European Coal and Steel Community
EEA European Economic Area
EEC European Economic Community
ETUC European Trade Union Confederation
EU European Union
Euratom European Atomic Energy Community
HCA High Court of Australia
ILO International Labour Organization
IR Industrial Reports
ITEA Individual Transitional Employment Agreement
KB King’s Bench
L Legislation
MB Management Board
NAFTA North American Free Trade Agreement
NATO North Atlantic Treaty Organization
NES National Employment Standards
NLRA National Labor Relations Act
NZLR New Zealand Law Reports
OECD Organisation for Economic Co-operation and Development
OEEC Organisation for European Economic Co-operation
P President
QB Queen’s Bench
SB Supervisory Board
SE Societas Europaea
SEA Single European Act
SH Shareholders
SME Small and Medium (-sized) Enterprise
TCR Termination, Change and Redundancy
TEU Treaty on European Union
UNICE Union of Industrial and Employers’ Confederations
of Europe
Abbreviations vii

Preface
Labour law is no longer the trendy subject to research and teach it
once was. In Europe the golden period of labour law lies squarely in
the 1960s (at a national level) and in the 1970s (at the supranational
level of what was then called the European Economic Community).
Today the bright young minds of legal scholars with a social con-
science tend to be focused on areas such as environmental law or,
even more in vogue, refugee law and international human rights.
Labour law, as a major object of study in its own right, risks rapidly
becoming a relic of the past.
At one level this book has been written by way of a nostalgic
reflex. It retraces the birth and subsequent growth, especially after
World War II, of labour law as an autonomous academic discipline. It
demonstrates the gradual fall from grace of labour law as a
Sonderdisziplin (‘special discipline’)—as the Germans would have it,
commencing with the deregulation movement of the 1980s but con-
tinuing long after Reaganomics and Thatcherism gave way to the new
buzz words of ‘globalisation’ and ‘international competitiveness’.
However, the purpose of this book is not to add to the existing litera-
ture of tirades against the free market. Publications with such
suggestive titles as Travail flexible, salariés jetables1 (Flexible Work,
Throw-Away Employees), edited by French economist Michel Husson,
while undoubtedly thought-provoking, can be overly negative and
needlessly cynical.
Instead, Death of Labour Law? seeks to invite constructive
debate about the relevance of labour law in shaping the social fabric
of the Western industrialised world for the twenty-first century. The
book has been written in the firm belief that labour law, even when
defined narrowly in terms of employee protection law, must continue
to have a role that is equal in importance, rather than merely subser-
vient, to the perceived imperatives of a globalised economy. Civilised
society, now and into the future, depends on a proper balance between
stability and flexibility. In Europe a newly coined term in this regard
is ‘flexicurity’. This term represents the focal point of an influential
Green Paper by the European Commission on modernising labour
law in the twenty-seven member states of the European Union.
Parallels can be drawn with the legislative reform agenda of the
Rudd-Gillard administration in Australia where a revamped system of
collective (workplace) bargaining is meant to operate against the
double backdrop of a ‘reinforced’ floor of statutory employee entitle-
ments and a ‘modernised’ award system.
For an Australian audience the immediate relevance of the book
derives from the ‘Forward with Fairness’ approach to the labour law
reform agenda of the Rudd government. New Zealand readers, for
their part, may wish to peruse this text against the backdrop of par-
ticularly challenging parliamentary elections faced by the Labour-led
coalition of Helen Clark in late 2008.
When writing an initial draft of the manuscript I had occasion
to test some of my ideas on some unsuspecting, yet willing partici-
pants in a summer course organised by Louisiana State University at
the University of Lyon III in France. I am grateful to then Chancellor
Costonis for this opportunity. A visiting professorship to teach com-
parative labour law at the University of Virginia allowed further useful
feedback and fine-tuning. I also wish to put on record my sincere
appreciation of the warm hospitality received from European col-
leagues at the University of Leuven over many years.
Melbourne, Solstice Day, 2008
Notes
1 Husson, Travail flexible, salariés jetables. Fausses questions et
vrais enjeux de la lutte contre le chômage.
x Death of Labour Law?